Rahul Gandhi’s Lok Sabha Disqualification: Legal Position On Suspension Of Conviction | Explainer

He has filed an appeal in Surat Sessions Court to challenge his conviction in the defamation case. While his sentence has already been suspended during the pendency of the appeal, his application for suspension of conviction is pending. If the same is allowed, his membership will be reinstated, subject to the issuance of a notification by the Lok Sabha Secretariat. The next hearing will take place on April 13.

Aiman J. Chishti explains the legal position on the suspension of conviction.

Difference Between Suspension Of Sentence And Suspension Of Conviction

When an individual is found guilty of committing a crime, they are convicted by the court. A judgment of conviction is followed by an order on sentence.

However, there is an opportunity to appeal the conviction and sentence. Section 389(1) of the Code of Criminal Procedure( CrPC) allows an appellate court to suspend the execution of the sentence or order that has been appealed against, and release the appellant on bail if they are in confinement. The court may do so by providing written reasons for their decision.

Although the CrPC does not explicitly mention the suspension of conviction, it also does not prohibit such suspension in any manner. As a result, the courts have decided on when an appellate court may suspend a conviction.

In simple terms, Suspension of sentence refers to a situation where a court has found an accused guilty of a crime and has imposed a sentence, but when the convicted person files an appeal, the execution of the sentence is temporarily postponed and the accused may be released on bail. This means that the convicted person is not required to serve the sentence immediately, and the sentence is put on hold until the appeal against the conviction is finally decided.

On the other hand, the suspension of conviction refers to a situation where the court not only suspends the sentence but puts in abeyance the conviction order. In practical terms, it would mean that the convict will not attract any other consequences till the final disposal of appeal.

The apex court in the case of Retti Deenabandhu and Others v. State of Andhra Pradesh observed that a convicted person in challenging his conviction in appeal not only seeks to avoid undergoing the punishment imposed upon him as a result of the conviction but he also wants that other evil consequences flowing from the conviction should not visit him and that the stigma which attaches to him because of the conviction should be wiped out.

Courts On Suspension Of Conviction

The case of Rama Narang v. Ramesh Narang & Ors addressed whether Section 389 (1) of the CrPC allows the Appellate Court to stay the operation of a conviction. The Apex Court said that if the conviction leads to disqualification, then Section 389(1) should not be narrowly interpreted to prevent the court from granting the order of suspension of conviction in appropriate cases.

This clearly means that it is implicit in Section 389(1) that along with the order of suspension of conviction there can also be suspension of conviction.

However, the apex court also observed that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. “An order of stay, of course, does not render the conviction non-existent, but only non-operative,” explained the court.

The Supreme Court also expressly dealt with the suspension of conviction when an MP was disqualified in consequence of conviction in the landmark case of Navjot Singh Sidhu v State of Punjab & ors, Sidhu was a sitting MP when he was convicted under Section 304 Part II IPC and was sentenced to 3 years of R.I. and a fine of Rs. 1 lakh. He was granted bail, and thus the execution of the sentence imposed upon him was suspended. He also moved an application for suspending the order of conviction passed against him by the High Court.

The Apex Court took note of the circumstances which led to the filing of the application for suspension of conviction. Sidhu had resigned from the membership of the Lok Sabha. However, he wanted to contest the election again and face the electorate in the changed scenario. The reason for seeking a stay or suspension of the order of conviction arose on account of Section 8(3) of the Representation of the People Act, 1951 - the provision states that a person convicted of any offence and sentenced to imprisonment for not less than two years “shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.”

The Apex Court said:

“He (Sidhu) has chosen to adopt a moral path and has set high standards in public life by resigning from his seat and in seeking to get a fresh mandate from the people. In the event prayer made by the appellant is not granted he would suffer irreparable injury as he would not be able to contest for the seat which he held and has fallen vacant only on account of his voluntary resignation which he did on purely moral grounds. Having regard to the entire facts and circumstances mentioned above we are of the opinion that it a fit case where the order of conviction passed by the High Court deserves to be suspended.”

In the case of Lok Prahari v. Election Commission of India, the Apex Court reiterated that upon the suspension of a conviction under Section 389 CrPC, the disqualification under Section 8 of RPA will not operate.

The apex court has consistently held that the power to suspend conviction should be used cautiously and only when the applicant demonstrates adverse circumstances or disqualifications that may result if the conviction is not suspended. In addition, the applicant has to prove the potential harm caused by not suspending the conviction.

In the case of State of Maharashtra v. Balakrishna Dattatrya Kumbhar, the Supreme Court held that power under Section 389 must be exercised with great circumspection and caution. The applicant must bring to notice of court all adverse circumstances or disqualifications likely to be suffered by him in case conviction is not suspended, as per the ruling.

If damage likely to be caused to the applicant cannot be undone for non-suspension of conviction then only may such power be exercised, the Supreme Court said in the ruling. The court further explained that the pleadings of the applicant must be scrutinised judiciously and, pros and cons have to be analysed and then conviction may be suspended, if required, after reasons are recorded in writing. If court deems it necessary it may even impose conditions while suspending conviction to protect the interest of other parties, added the court.

The Supreme Court has explained in the case of State of Punjab v. Navraj Singh that though the power to suspend an order of conviction, apart from the order of sentence, is not alien to S. 389(1) of the code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction the court should not suspend the operation of the order of conviction, according to the apex court. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance, it said in the ruling.

However the Supreme Court is not usually inclined to allow the relief of suspension of conviction in case of corruption charges.

In UOI v Atar Singh & Anr, the stay of conviction by the High Court was set aside by the Supreme Court in a case concerning a conviction under Prevention of Corruption Act on the ground that removal of the delinquent government servant from service was not a sufficient ground inviting a suspension of conviction and the discretion by the High Court ought not to have been exercised in such cases.

In the case of K.C. Sareen vs C.B.I., Chandigarh, while declining the prayer of the appellant for grant of an order of stay of conviction, the bench observed that when conviction is on a corruption charge against a public servant, the appellate court should not suspend the order of conviction during the pendency of the appeal, even if the sentence of imprisonment is suspended.

The bench further observed that it would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision. These observations would equally apply when a prayer for stay of order of conviction is made so as to remove the disability to contest an election except, as already noted, in a very exceptional and rare case, added the Court.

Recently, Bombay High Court in the case of Sanjay Jaysing Patil vs State Of Maharashtra And Ors was hearing the application of suspension of conviction wherein the applicant was convicted under Section 498-A of IPC and sentenced to two years imprisonment. When the applicant was elected as a member of Gram Panchayat, the rival contender called in question the election and sought disqualification of the applicant in the wake of the conviction of the applicant in the criminal case, by filing an Election Petition. The court granted the suspension of conviction stating that the appeal against the conviction was pending since 2008 and has not yet come up for hearing.

“The fact that the applicant was 20 years old at the time when he accused of the aforesaid charge and though the appeal has been admitted in the year 2008, it has not yet come up for hearing and is pending on the file of this Court , itself justify that he should move ahead and progress further in the life, if at all an opportunity is available to him, but for his conviction under the impugned judgment, he is causing great hardship. If he would have been acquitted of the charges, he could have availed many opportunities in life, as any other citizen of the country. However, he have been deprived of the same due to pendency of the appeal.”